Race Equality and TCNs, or How to Fight Discrimination with A Discriminatory Law

• DOI: http://doi.org/10.1111/j.1468-0386.2009.00488.x
• Date: 01 November 2009
• Author: Sara Benedí Lahuerta
• Published date: 01 November 2009

eulj_488738..756

Race Equality and TCNs, or How to Fight

Discrimination with A Discriminatory Law

Sara Benedí Lahuerta*

Abstract: Two subjects often f‌it with diff‌iculty in ‘Fortress Europe’: Equality and Third

Country Nationals (TCNs). EC Law presents fundamental weaknesses with regard to

TCNs in the intersections between race, religion and nationality discrimination. In par-

ticular for non-EU nationals, these three grounds of discrimination can be closely related,

and diff‌icult to distinguish. However, they are of great importance for the integration and

fair treatment of migrants, which was one of the objectives of the Tampere Programme.

This article analyses the extent to which the Race Equality Directive (43/2000/EC) and

the Framework Equality Directive (78/2000/EC) provide an effective protection against

‘racial related discrimination’. It suggests that the loopholes of both Directives, together

with the current interpretation of Article 12 EC, have institutionalised not only a hierar-

chy of equalities, but also a hierarchy of peoples, and it explores possible interpretative

solutions.

I Introduction

The rise of the immigrant population in Europe since 19941has brought a greater

mixture of individuals and has created a parallel need to manage diversity and inte-

gration. This trend, together with pressures from NGOs,2led European institutions to

take action against racism and xenophobia by inserting, in 1997, Article 13 in the EC

Treaty, which considerably extended the Community (EC) competences to f‌ight

discrimination.3The next development was the adoption of two Directives imple-

menting this provision: the Race Equality Directive4(RED) and the Framework

* PhD candidate at the University of Zaragoza. This article is partially based on a master thesis written at

the College of Europe (Bruges). The author would like to thank Síofra O’Leary and Osvaldo Saldias

Collao for their comments on earlier drafts. Any errors or omission are the author’s alone.

1Eurostat, Europe in f‌igures—Eurostat Yearbook 2006–07 (Off‌ice for Off‌icial Publications of the European

Communities, 2006), 75.

2M. Bell, ‘Meeting the challenge? A comparison between the EU Racial Directive and the Starting Line’,

in I. Chopin and J. Niessen (eds), The Starting Line and the Incorporation of the Racial Equality Directive

into the national Laws of the EU Member States and Accession States (Commission for Racial Equality &

Migration Policy Group, 2001), 22.

3T. K. Hervey, ‘Putting Europe’s House in Order: Racism, Race Discrimination and Xenophobia after the

Treaty of Amsterdam’, in D. O’Keeffe and P. Twomey (eds), Legal Issues of the Amsterdam Treaty (Hart

Publishing, 1999), 329–349.

4Council Directive 43/2000/EC implementing the principle of equal treatment between persons irrespective

of racial or ethnic origin [2000] OJ L180/22.

European Law Journal, Vol. 15, No. 6, November 2009, pp. 738–756.

© 2009 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

Directive5(FD) for the grounds of religion or belief, disability, age or sexual

orientation.6

Many commentators have signalled both the virtues and the weaknesses of these

Directives.7However, a f‌ield which remains relatively unexplored is the real impact of

these Directives on Third Country Nationals (TCNs). It is true that, in principle, the

RED and the FD concern both EU citizens and TCNs, but in practice, they are of

special interest for the latter.8As a matter of fact, the more immigration European

society receives, the higher potential for racial and religious conf‌lict exists.9In addi-

tion, the Community has always drawn a very clear distinction between EU citizens

(insiders) and non-EU citizens (outsiders), which makes TCNs more vulnerable for

the mere fact of being ‘the Other’.10 This shows that racial, religious and nationality

discrimination prohibitions can be equally important for the integration of TCNs.11

However, the protection provided by EC Law is lower for religious than for racial

discrimination, and even lower for nationality discrimination, which is not prohibited

for TCNs.12

This multilayered protection can be problematic due to the fact that racial discrimi-

nation can be easily mixed with discrimination on grounds of non-EU nationality13 or

religion.14 It is frequently the case that migrants ‘belong to several different overlapping

and intersecting groups’,15 which increases the diff‌iculties of distinguishing between

each of them.16 Yet, we should also note that the Community measures are limited by

its competences and by the principles of subsidiarity and proportionality.17

5Council Directive 78/2000/EC establishing a general framework for equal treatment in employment and

occupation [2000] OJ L 303/16.

6Art 1 FD.

7eg D. Chalmers, ‘The Mistakes of the Good European?’, in S. Fredman (ed), Discrimination and Human

Rights. The case of Racism (Oxford University Press (OUP), 2001) 193, 238–249; E. Howard, ‘Anti Race

Discrimination Measures in Europe: An Attack on Two Fronts’, (2005) 11 European Law Journal

468–486; D. Schiek, ‘A New Framework on Equal Treatment of Persons in EC Law?’, (2002) 8 European

Law Journal 290–314.

8M. Bell, ‘EU anti-racism policy: the leader of the pack?’, in H. Meenan (ed), Equality Law in an Enlarged

European Union. Understanding the Article 13 Directives (Cambridge University Press, 2007) 178, 200-201.

9cf E. Howard, ‘The EU race directive: its symbolic value—its only value?’, (2004) 6 International Journal

of Discrimination and the Law 141, 151; Commission (EC), Third Annual Report on Migration and

Integration, COM (2005) 389 f‌inal.

10 E. Guild, The Legal Elements of European Identity. EU Citizenship and Migration Law (Kluwer, 2004),

201-216.

11 cf H. Meenan, ‘Introduction’, in H. Meenan (ed), Equality Law in an Enlarged European Union. Under-

standing the Article 13 Directives (Cambridge University Press, 2007), 1, 28.

12 infra section III. See eg M. Bell, ‘Beyond European Labour Law? Ref‌lections on the EU Racial Equality

Directive’, (2002) 8 European Law Journal 384, 388; S. Carrera and M. Formisano, ‘An EU Approach

to Labour Migration. What is the Added Value and the Way ahead?’ (CEPS, 2005) 10, available at

http://www.ceps.be/Article.php?article_id=16; B. Hepple, ‘Race and Law in Fortress Europe’ (2004) 67

Modern Law Review 1, 6–7; Bell, op cit n2supra, 30-32.

13 M. A. Ballester Pastor, ‘El Principio Comunitario de igualdad de trato por razón de origen racial o

étnico’, (2006) 63 Revista del Ministerio de Trabajo y Asuntos Sociales 33, 39.

14 R. A.D. Bloul, ‘Islamophobia and anti-discrimination laws: ethno-religion as a legal category in the UK and

Australia (2003) 6, available at http://www.anu.edu.au/NEC/Archive/bloul_paper.pdf; Bell, op cit n8

supra, 178, 183–184.

15 S. Fredman, ‘Combating Racism with Human Rights’, in S. Fredman (ed), Discrimination and Human

Rights. The case of Racism (OUP, 2001) 9, 11.

16 cf M. Bell, Anti-discrimination Law and the European Union (OUP, 2002), 83.

17 Art 5 EC.

November 2009 Race Equality and TCNs

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© 2009 Blackwell Publishing Ltd.